8 Apr 2015

Employees and employers are bound together in a unique relationship and breaking up is often hard to do.  There are amicable separations, however quite often there is a fundamental breakdown of trust and confidence, sincere disappointment and even hurt.  Both parties need to survive the breakup and each has an interest in achieving a happy ending – even if it has to be manufactured.  Employers will most often be the party best equipped to offer a sensible solution.  Whenever it happens, and whatever the reason engaging legal representation will assist to remove emotion and focus on issues rather than personalities.   
A termination is better managed as a negotiation than a confrontation.
I Quit!
Resignations can disappoint an employer – an employee is an investment and a resource with valuable knowledge and their departure will often be a real loss.  Even where there is no love lost and the employer is happy to let the employee go, a sudden fear of infidelity may arise in relation to clients or competitors.  An employer may also worry about how to ensure the role is effectively handed over to a replacement without disrupting client service or team morale. 
Although the employee has now scheduled the relationship for termination there is still time to negotiate how the breakup will occur.  By offering early release from the contract or an additional payment a deal can be struck that suits all and ensures a relatively smooth transition.  A carefully crafted deed of release can enhance the existing employment contract as necessary and firm up obligations in relation to confidentiality, restraint of trade, non-disparagement, notice period, return of company property and final pay.  
You’re Fired! 
Emotions can and do run high where individuals are sacked.  The Courts recognise that employees are usually the more vulnerable party in the relationship and so will expect employers to ensure they have not abused their more powerful position.  Employees should be told what the employer is unhappy about and be given a fair chance to mend a relationship that is on the rocks.  However, where the trust and confidence is gone it isn’t surprising that despite any explanation given or promise made the employer wants to proceed to terminate the employment.  
In many situations an employer deciding to give notice and terminate a contract will be justifiable, reasonable and lawful.  However the practical reality is that no matter how well you followed your internal procedures, no matter how many written warnings you issued or how carefully you performance managed a sub-standard employee that person can very easily lodge an unfair dismissal claim.  Even worse the current law requires employees to do so in the immediate aftermath of their dismissal (when emotions are at their most raw).  The unfortunate result is that in many cases a disgruntled employee simply sees they have nothing to lose by lodging an unfair dismissal claim.  Once proceedings in relation to a termination are begun an employer is necessarily drawn in and must respond to the claim and participate in conciliation.  More often than not a small settlement payment is made to the employee at conciliation to simply end the matter.   
A better approach may be to invest time, money and effort into trying to achieve a mutually acceptable termination of the employment contract.  Offering a payment over and above an employee’s notice entitlements can soften the blow for the employee and be made on condition that no further legal action will be taken and that neither party will denigrate the other.  If appropriate a statement of service can be provided to assist the employee to gain new employment.  It is a delicate process that will involve a risk assessment and careful drafting but once again early involvement of a lawyer can assist you to strike a deal and ensure a relatively happy ending.
Legal actions around termination of employment contracts often need to be taken rapidly, decisively and carefully.  The lawyers at HHG Legal Group can assist you to make the right move.
They waved goodbye and all worked happily ever after……The End.

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

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